"ADVICE AND CONSENT": The Senate's Constitutional Role On Judicial Appointments

The Constitution and the Early History of Judicial SelectionThe Constitution's system of checks and balances gives both the Executive Branch and the Legislative Branch important roles in choosing the members of the third branch of government, the Judiciary. Thus, the President is entrusted with the power to appoint federal judges "by and with the Advice and Consent of the Senate." This constitutional language, which is not limited to a yes or no authority, provides for an active Senate role. Indeed, in 1795, a Senate that included many members who had attended the Constitutional Convention rejected President Washington's nominee for Chief Justice of the Supreme Court. These early Senators did not limit their review to legal credentials, but apparently rejected John Rutledge because he opposed the Jay Treaty with Great Britain. About one out of every four presidential nominations to the Supreme Court over the next century failed to secure Senate ratification.

The Importance of the Senate's RoleCareful Senate review of all judicial nominees' records and views is vital to ensure a fair and balanced judiciary. Every federal judge has the power to decide the fate of basic environmental and other protections. (Read more on judges' decision making powers.) In addition, lower federal courts frequently serve as a "farm team" for higher level appointments: many federal appeals court nominees are sitting federal trial judges, while seven of the current Supreme Court justices were federal appeals court judges when they were nominated.

The Senate Judiciary CommitteeAll federal judicial nominations are initially reviewed by the Senate Judiciary Committee, which is chaired by Sen. Patrick Leahy (D-VT). Nominees must provide detailed, public, written responses to a Committee Questionnaire, testify at a hearing at which they answer any oral questions from committee members, and answer any follow-up written questions. In the past, the committee has also heard testimony from opponents of controversial lower court and Supreme Court nominees. The Senate has given the committee the authority either to reject nominees or to forward them to the full Senate, in recognition of the fact that committee members have the most opportunity to review nominees' records and views.

The SenateAll Senators (and therefore all Americans who contact their Senators) have an important role to play in judicial selection. A Senate Judiciary Committee vote to forward a controversial judicial nomination to the full Senate does not assure approval. In recent years, both Republican and Democratic Senators have vigorously debated and defeated Supreme Court and lower court nominees in committee and on the Senate floor.